Jammu & Kashmir High Court – Srinagar Bench
Mohammad Ashraf Sheikh vs Shabir Ahmad Mir on 21 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.121
Regular List
,,, HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No.272/2025
MOHAMMAD ASHRAF SHEIKH
.....Petitioner(s)
Through: Mr.S.R.Hussain, Advocate.
V/s
SHABIR AHMAD MIR
... ..Respondent(s)
Through : None
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
21.07.2025
1. The petitioner (defendant) through the medium of present
petition has invoked the supervisory jurisdiction of this Court to
assail order dated 08.07.2025 passed by the learned Principal
District Judge, Kulgam (hereafter referred to as “the trial
Court”), whereby conditional leave to defend the suit filed by the
respondent/plaintiff has been granted in his favour.
2. It appears that the respondent/plaintiff has filed a suit under
Order XXXVII of CPC against the petitioner/defendant before
the trial court seeking recovery of an amount of Rs.5,36,900/-
alongwith interest. Case of the plaintiff is that the defendant
represented before him that he is running a reputed consultancy
and that he would arrange employment for plaintiff’s son in a
multinational Company upon payment of Rs.6,50,000/-, which
has to be kept as security deposit with the said Company and that
the said amount would be refundable. It has been pleaded by the
plaintiff that he after selling a patch of land arranged an amount
of Rs.6,50,000/-and paid the same to the defendant.
3. He is stated to have approached the defendant a number of
times for return of money when his son could not get an
employment, but without any success. According to the
plaintiff, he and his son were made to wait the whole day in
Corporate Office of J&K Bank where the defendant was
working. The plaintiff is stated to have approached two friends
of the defendant so as to get back his money, whereafter the
defendant agreed to repay the amount. Accordingly, he issued
one cheque dated 23.02.2022 in favour of the plaintiff for an
amount of Rs.51,000/- which was returned unpaid by the Bank.
An amount of Rs.1,13,100/- is stated to have been paid by the
defendant to the plaintiff, out of which Rs.73,100/- were paid by
him into the bank account of plaintiff maintained with J&K
Bank Branch Khudwani and the remaining amount of
Rs.40,000/- was received by the plaintiff from the defendant in
cash in two installments. First installment of Rs.30,000/- is
stated to have been received by the plaintiff through the friends
of the defendant, namely, Javaid Ahmad Qadiri and Mushtaq
CM(M) No.272/2025 2|P a g e
Ahmad Bhat and the balance amount of Rs.10,000/- was paid to
him by the defendant personally.
4. According to the plaintiff the four other cheques, one dated
25.03.2022 for Rs.1,00,000/-, second dated 25.4.2022 for
Rs.1,00,000/-, third dated 30.05.2022 for Rs.1,50,000/- and the
fourth one dated 30.06.2022 for an amount of Rs.1,50,000 which
were drawn by the defendant in favour of the plaintiff upon their
presentation before the Bank were dishonoured. It has been
further pleaded that legal notice of demand was served upon the
defendant, whereafter, the defendant deposited another sum of
Rs.73,100/- into the bank account of plaintiff on 23.01.2023.
Thus, leaving the balance amount of Rs.5,36,900/-, which
according to the plaintiff is due to him from the defendant.
5. The defendant/petitioner after entering his appearance
before the trial Court moved an application for leave to defend,
in which he took a stand that in the year 2022, two touts, viz.,
Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat came into his
contact and paid him an amount of Rs.1,20,000/- as gratification,
so as to give them access to the higher officials of the J&K
Bank. It has been pleaded that an FIR came to be registered
against the former Chairman of J&K Bank by Anti Corruption
Bureau with regard to illegal appointments, whereafter the touts,
namely, Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat started
CM(M) No.272/2025 3|P a g e
to blackmail the defendant and they demanded an amount of
Rs.1,20,000/- back from him. They further demanded blank
cheques from the defendant as security.
6. It is the case of the defendant that he started to liquidate
amount of Rs.1,20,000/- to said Javaid Ahmad Qadiri and
Mushtaq Ahmad Bhat to save his employment in the Bank and
in this connection they asked him to deposit an amount of
Rs.73,000/- in the account of the plaintiff, from whom the above
named two touts had collected some bribe money. Thus the
defendant liquidated the amount of Rs.1,30,000/= to the
aforesaid two touts and transferred the money in the account of
the plaintiff.
7. It is the case of the defendant that he came to know from the
contents of the plaint that the two touts had taken forcibly four
blank cheques mentioned in the plaint by blackmailing the
defendant and these cheques were handed over by them to the
plaintiff for repaying the bribe amount. According to the
defendant he has neither received the amount as bribe from the
plaintiff nor has he issued any cheque in his favour. The
defendant has also pleaded that the plaintiff has not placed on
record the original cheques and memos.
8. The learned trial Court, after analysing the facts emanating
from the pleadings of the parties, came to the conclusion that the
CM(M) No.272/2025 4|P a g e
defence set up by the petitioner/defendant is illusory and
moonshine and, therefore, only a conditional leave to defend the
suit can be granted in his favour. Accordingly, by virtue of
impugned order dated 08.07.2025, the learned trial Court has
granted leave to defend the suit in favour of the defendant/
petitioner subject to deposition of Rs.3,00,000/- as security to be
kept in FDR in the name of trial Court.
9. The petitioner has challenged the impugned order on the
ground that once the learned trial Court had come to the
conclusion that there is a defence available to the defendant, it
was not open to the said Court to impose conditions for grant of
leave to defend the suit. It has been further contended that the
condition imposed by the learned trial Court for grant of leave to
defend is harsh and it amounts to denial of leave to defend the
suit, despite there being a plausible defence available to the
defendant.
10. I have heard learned counsel for the petitioner and perused
the impugned order, contents of the plaint and contents of
application for leave to defend.
11. Sub Rule (5) of Rule 3 of Order XXXVII of CPC provides
guidelines for grant or refusal of leave to defend the suit filed
under Order XXXVII of CPC. The same reads as under:-
CM(M) No.272/2025 5|P a g e
“Rule 3(5): The defendant may, at any time within ten days
from service of such summons for judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient
to entitle him to defend, apply on such summons for leave to
defend such suit, and leave to defend may be granted to him
unconditionally or upon such terms as may appear to the
Court or Judge to be just:
Provided that leave to defend shall not be refused
unless the Court is satisfied that the facts disclosed by the
defendant do not indicate that he has a substantial defence to
raise or that the defence intended to be put up by the
defendant is frivolous or vexatious:
Provided further that, where a part of the amount
claimed by the plaintiff is admitted by the defendant to be
due from him, leave to defend the suit shall not be granted
unless the amount so admitted to be due is deposited by the
defendant in Court.”
12. From a perusal of the aforesaid provision it is clear that if
the defendant discloses such facts as may be deemed sufficient
to entitle him to defend the suit, leave to defend has to be
granted to him unconditionally or upon such terms as may
appear just to the Court. It further provides that leave to defend
ordinarily cannot be refused unless the Court is satisfied that the
facts disclosed do not indicate that he has a substantial defence
to raise or that the defence intended to be put up by the
defendant is frivolous or vexatious. It is also provided that
where a part of claim is admitted by defendant to be due from
him, leave to defend the suit cannot be granted unless the
amount so admitted to be due is deposited by the defendant
before the Court.
CM(M) No.272/2025 6|P a g e
13. The High Court of Calcutta in the case of Kiranmoyee Dassi
vs. J.Chatterjee, 1945 SCC Online Calcutta 42, has laid down
propositions with regard to the entitlement of the defendant to
leave to defend the suit. The relevant excerpts of the said
judgment are reproduced as under:-
“(1) If the defendant satisfies the Court that he has
a good defence to the claim on its merits the plaintiff
is not entitled to leave to sign the judgment and the
defendant is entitled to unconditional leave to defend.
(2) If the defendant raised a triable issue indicating
that he has a fair or bona fide or reasonable defence
although not a positively good defence the plaintiff is
not entitled to sign judgment and the defendant is
entitled to unconditional leave to defend.
(3) If the defendant discloses such facts as may be
deemed sufficient to entitle him to defend, that is to
say, although the affidavit does not positively and
immediately make it clear that he has a defence yet
shows such a stage of facts as leads to the inference
that at the trial of the action he may be able to
establish a defence to the plaintiff’s claim the plaintiff
is not entitled to judgment and the defendant is
entitled to leave to defend but in such a case the court
may in its discretion impose conditions as to the time
or mode of trial but not as to payment into court or
furnishing security.
(4) If the defendant has no defence or the defence
set up is illusory or sham or practically moonshine
then ordinarily the plaintiff is entitled to leave to sign
judgment and the defendant is not entitled to leave to
defend.
(5) If the defendant has no defence or the defence
is illusory or sham or practically moonshine then
although ordinarily the plaintiff is entitled to leave to
sign judgment, the court may protect the plaintiff by
only allowing the defence to proceed if the amount
claimed is paid into court or otherwise secured and
give leave to the defendant on such condition, and
thereby show mercy to the defendant by enabling him
to try to prove a defence.”
CM(M) No.272/2025 7|P a g e
14. The aforesaid proposition of law with regard to entitlement
of a defendant to defend the suit has been consistently affirmed
by the Supreme Court in a number of judgments, one of which
has been delivered in the case of State Bank of Hyderabad v.
Rabo Bank (2015) 10 SCC 521.
15. From the foregoing analysis of the legal position, it is clear
that leave to defend the summons for judgment has to be granted
to the defendant when there is a triable or reasonable issue raised
by him in the application for leave to defend and it has to be
unconditional leave to defend. Even in a case where defendant
discloses the facts which make a positive impression that at the
trial the defence would be established to the plaintiff’s claim,
unconditional leave to defend has to be granted to him. It is only
in cases where defence set up is illusory or sham or practically
moon shine that plaintiff is entitled to leave to sign the judgment.
It is also clear that in cases where the defendant raises plausible
but improbable defence, the Court can impose conditions as to
the time or mode of trial as well as payment into court or
furnishing the security.
16. Coming to the facts of the instant case, the defendant has
admitted that he has issued four cheques in favour of the
plaintiff, but according to him these four cheques were forcibly
CM(M) No.272/2025 8|P a g e
obtained from him by Javaid Ahmad Qadiri and Mushtaq
Ahmad Bhat, who delivered the said cheques to the plaintiff. He
has also admitted that he received an amount of Rs.1,20,000/-
from the above named two persons and thereafter he paid
Rs.73,000/- to the plaintiff in connection with repayment of
Rs.1,20,000/- to above named two persons. The defence of the
defendant that Javaid Ahmad Qadiri and Mushtaq Ahmad Bhat
had taken four cheques forcibly from him and thereafter they
handed over the said cheques to the plaintiff, appears to be
illusory. It is highly improbable that Javaid Ahmad Qadiri and
Mushtaq Ahmad Bhat would have obtained the cheques from the
defendant forcibly and handed over the same to the plaintiff
when they could have easily got the cheques in their own name.
The explanation tendered by the defendant for having repaid
money in the bank account of the plaintiff and not to the
aforenamed two persons from whom he is stated to have
received the money, appears to be implausible, thereby raising
serious doubts about his defence. In these circumstances, the
learned trial Court has appropriately described the defence of
plaintiff as moonshine and has granted conditional leave to
defend the suit to the defendant with a view to protect the
interests of the plaintiff.
CM(M) No.272/2025 9|P a g e
17. It is trite law that High Court while exercising its powers
under Article 227 of the Constitution, can interfere in orders
passed by an inferior Court only if any gross illegality resulting
in failure of justice has been committed by such a Court. Even
an error of fact or an error of law cannot form a ground to
interfere in an order passed by an inferior Court.
18. In the instant case, the impugned order passed by the trial
Court does not suffer from any illegality, muchless gross
illegality that would warrant interference from this Court in
exercise of its supervisory jurisdiction. The petition lacks merit
and is dismissed accordingly.
(SANJAY DHAR)
JUDGE
SRINAGAR
21.07.2025
Sarveeda Nissar
1. Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Sarveeda Nissar CM(M) No.272/2025 10 | P a g e
I attest to the accuracy and
authenticity of this document
every page at bottom left side
23.07.2025 13:44
